BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100015319 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.  He also requests item 6 (Organization) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation) be corrected to show the 29th Infantry Division instead of the 769th Ordnance Light Maintenance Company.

2.  The applicant states:

* he was wounded on 6 June 1944 when an artillery shell hit a slab of cement he was standing on
* his legs were peppered with cement and shrapnel and they bled severely for several days
* he did not obtain medical treatment because the medics were caring for those much worse off than he at the time
* he picked the shrapnel out of his legs and after several weeks his wounds healed and scabbed over
* over the years his legs have given him trouble
* there are severe scars where the shrapnel wounded him
* he also has trouble hearing which was determined to be caused from the concussion under his helmet from the artillery shell blast
* prior to his discharge and after the war was over, the Army kept him for an additional 3 months to type discharge papers since he was considered to be a good typist
* when he was separated he was discharged by the 769th Ordnance Light Maintenance Company instead of the 29th Infantry Division

3.  The applicant provides:

* WD AGO Form 53-55
* medical records from the Department of Veterans Affairs (VA)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant was inducted into the Army of the United States on 11 December 1942 and he entered active duty on 18 December 1942.  He served as a rifleman in the European theater of operations from 2 June 1943 through 7 September 1945.  He was honorably discharged on 21 September 1945.

4.  Item 6 of the applicant's WD AGO Form 53-55 shows the entry "769th Ordnance Light Maintenance Company."  Item 32 (Battles and Campaigns) of his WD AGO Form 53-55 shows he participated in four battles and campaigns (Central Europe, Normandy, Northern France, and Rhineland).  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 shows the European-African-Middle Eastern Campaign Medal with four bronze service stars, Good Conduct Medal, Distinguished Unit Citation, and Bronze Star Medal (per Headquarters, 29th Infantry Division General Orders Number 75, dated 1945) as authorized awards.  Item 34 (Wounds Received in Action) of his WD AGO Form 53-55 shows the entry "None."  His WD AGO Form 53-55 also shows he received the Combat Infantryman Badge.
5.  There is no evidence in the available records that shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action during World War II.

6.  In support of his request for the Purple Heart, the applicant provided VA medical records which show he was diagnosed with and treated for mixed hearing loss.  These records also show the applicant has multiple scars on his legs and he reported he was injured on 6 June 1944 when an artillery shell exploded nearby.  However, there is no evidence of record which shows these scars were the result of hostile action during World War II.
 
7.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register), dated 6 July 1961, shows awards and citations authorized for units which served during World War II.  This pamphlet shows the 769th Ordnance Light Maintenance Company participated in two campaigns (Central Europe and Rhineland) during World War II.

8.  Department of the Army Pamphlet 672-1 shows the 29th Infantry Division participated in four campaigns (Ardennes-Alsace, Central Europe, Northern France, and Rhineland) during World War II.

9.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-45 (Decorations), effective 13 October 1949, provided in pertinent part, that the Bronze Star Medal is authorized for each individual who was cited in orders or awarded a certificate for exemplary conduct in ground 
combat between 7 December 1941 and 2 September 1945 or whose achievement or service, during that period, was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.  An oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Bronze Star Medal.

11.  Department of the Army Technical Manual 12-235 (Discharge Procedures and Preparation of Separation Forms) established the policies and procedures for completion and distribution of the WD AGO Form 53-55 during World War II.  This regulation states the last unit or similar element to which an individual was assigned, rather than the element of which he was a part while moving to a separation activity, will be entered in item 6 of the WD AGO Form 53-55.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records that shows the applicant was wounded as a result of hostile action during World War II.  In the absence of orders or other evidence of record showing that the applicant was injured and treated for wounds as a result of hostile action during World War II, the VA medical records provided by the applicant are not sufficient as a basis for amending his WD AGO Form 53-55 to show award of the Purple Heart.  Unfortunately, as the applicant acknowledges, he did not receive treatment for his wounds.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

2.  The applicant's WD AGO Form 53-55 shows his organization was the 769th Ordnance Light Maintenance Company and that he participated in four battles and campaigns during World War II.  However, Department of the Army Pamphlet 672-1 shows the 769th Ordnance Light Maintenance Company participated in two battles and campaigns during World War II.  Since the applicant contends his organization was the 29th Infantry Division and three of the four campaigns shown in Department of the Army Pamphlet 672-1 for the 29th Infantry Division are shown on his WD AGO Form 53-55, it is reasonable to presume he was assigned to this organization.  Therefore, it would be appropriate to correct item 6 of his WD AGO Form 53-55 to show the 29th Infantry Division.

3.  The applicant was awarded the Bronze Star Medal prior to his discharge on 21 September 1945.  However, he is entitled to a second award of the Bronze Star Medal based on award of the Combat Infantryman Badge.  Therefore, he should be awarded a second award of the Bronze Star Medal and his WD AGO Form 53-55 should be corrected to show the Bronze Star Medal with First Oak Leaf Cluster.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.   deleting the entry in item 6 of his WD AGO Form 53-55 and replacing it with "29th Infantry Division;" 
   
   b.  awarding him the Bronze Star Medal with First Oak Leaf Cluster (based on award of the Combat Infantryman Badge); and 
   
   c.  deleting the entry "Bronze Star Medal per GO #75 Hq 29th Inf Div/45" from item 33 of his WD AGO Form 53-55 and replacing it with "Bronze Star Medal with First Oak Leaf Cluster."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.




      __________x_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100015319



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ABCMR Record of Proceedings (cont)                                         AR20100015319



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